1116

Prosecutions Under 18 U.S.C. § 922(g)(8)

Title 18 U.S.C. §§ 922(d)(8) and (g)(8) concern the
prohibition
against disposal of firearms to, or receipt or possession of firearms by,
persons
who are subject to domestic violence protection orders. Section 922(d)(8)
prohibits the knowing transfer of a firearm to a person who is subject to a
court
order that restrains the person from harassing, stalking, or threatening an
intimate partner or child of such intimate partner, and section 922(g)(8)
prohibits the receipt or possession of a firearm or ammunition by such a
person.

There are several key evidentiary issues which can arise in these
cases. A violation of § 922(d)(8) must be "knowing." Proof concerning
knowledge of the restraining order on the part of the supplier must be
established. The term "intimate partner" is defined as including a spouse
or
former spouse, or a person with whom the victim has had a child, but it does
not
include a girlfriend or boyfriend with whom the defendant has not resided.
See 18 U.S.C. § 921(a)(32). In addition, the protective order
must
have been issued following an evidentiary hearing as to which the defendant
had
notice and an opportunity to appear. The order must include a specific
finding
that the defendant represents a credible threat to the physical safety of
the
victim or by its terms explicitly prohibit the use, attempted use, or
threatened use of physical force that would reasonably be expected to cause
bodily injury.

The provisions of this statute do not provide an exception for law
enforcement officers, but the provisions of the Federal firearms laws permit
an
exemption from many of the restrictions. Section 925(a)(1) of Title 18
grants
an exemption: "The provisions of this chapter, . . . shall not apply with
respect
to the . . . possession . . . of any firearm or ammunition . . . issued for
the
use of, the United States or any department or agency thereof or any State
or any
department, agency, or political subdivision thereof."

The Bureau of Alcohol, Tobacco and Firearms (BATF) has issued an
advisory letter outlining the parameters of this exemption. The BATF letter
states:

This [exemption] applies to an officer's possession of a
firearm
or ammunition whether on or off duty, as long as the officer's official
duties
require the possession of the firearm or ammunition. On the other hand,
Federal
law would be violated if an officer subject to a disabling restraining order
receives or possesses a firearm or ammunition in a personal
capacity.